Missouri: Attorney Wins $700K in Medical Bills on “Modified” Award

The claimant hurt his back in 2011 when he moved a 100-pound bag of sugar onto a pallet.  The commission modified a finding that claimant not only strained his back, but hurt his prior degenerative spine, and increased the award more than $700,000.  Valdez v Gilster Mary Lee, 2015 MO WCLR Lexis 110 (Nov. 20, 2015).

The ALJ rejected bills for $701,892 in medical treatment for an alleged multi-level disc injury and found that the claimant failed to show the accident caused a disc injury.  Claimant's medical records shortly after the accident contain a history that his symptoms had resolved, that he had a normal exam and that he denied he was in pain.  About 7 weeks later,  the claimant asserted an acute worsening of symptoms in the past week or two.  Claimant had pre-existing degenerative disc disease. He ultimately underwent a three-level back surgery in December 2011. 

Dr. Chabot, an orthopedist,  examined claimant in 2011 and found no active radiology and concluded the spinal condition was primary degenerative.  Dr. Poetz, a family practice doctor, testified an acute onset of pain was best explained by a traumatic herniation than a gradual degenerative process.  He rated with a 45% disability.  Dr. Chabot provided no rating and the case was defended on medical causation.   Claimant testified that following surgery  his leg symptoms improved, but he still has daily back pain which affects ADLs.  He testifies he takes 5 medications without significant relief, and treats at a pain clinic and wants to have more RF surgery. 

The Commission reversed the denial based on medical causation and modified the award. The Commission found the accident caused "at least" a herniation at L5-S1 based on Dr. Poetz' opinion that acute pain in the back and leg represented a disc herniation.  The commission identified no prior medical treatment and no subsequent intervening accident. Claimant acknowledges he minimized his symptoms to get back to work.  The employer contends he lied.

"We cannot adopt employer's rather hyperbolic characterization of employee as someone  ‘unwilling to speak the truth.’ Rather, as employee forthrightly admits, he minimized his symptoms   when he saw Dr. Womack in July 2011 because he was eager to get back to work in order to provide for his family. We find that employee wanted to get back to work and simply overestimated his ability to return to his normal daily work duties..."

The commission awarded $759,779 in benefits plus open medical.  About 92% of the award was for medical bills from Dr. Fonn.  The case was tried in December 2014.  Claimant resumed work at modified duty and sought permanent partial rather than permanent total benefits. 

The employer offered no evidence to contest the reasonableness of the charges.  The Commission indicated it would not infer a change in condition  because the first studies showed "bulges" and the later studies showed "herniations."

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts.

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